THE ATTRITION RATE IN RAPE

1. THE ATTRITION RATE IN RAPE There is now a large volume of research literature on rape attrition, that is on when,how and why cases are dropped from or otherwise lost to the criminal justice process. The dictionary definition of attrition is ‘grinding down by friction.’ This is very fitting to that fundamentally important portion of attrition related to the psychological reactions and decisions of the victim. It is not sufficiently acknowledged that the victim is the main decision-maker leading to attrition (80%+) and that the victim’s lack of confidence in the system is such a major factor. The more usual analogy for thinking about most investigations of attrition is that of an obstacle course with cases dropping out at a series of barriers related to specific events and decisions by key actors.

2. Research on attrition has played a very important role in the gathering of evidence to support the mainly feminist driven and by now largely accomplished, if not always effective, reform of the law and criminal procedures relating to sexual offending. • The concept of attritionhas acted as a lens that focuses attention on many of the critical, complex issues around how the law deals with sex crime. • Descriptive • Diagnostic • Evaluative

3. Arguably, the attrition rate is most meaningful, useful and thought-provoking when defined in its broadest and simplest, descriptive terms. This is where the numerator or the outcome of interest is significant, appropriate punishment following convictionfor rape and where the denominator or pool of potential outcomes includes all rapes that actually occur. Basic (or Ideal) = Punishment following conviction Attrition Rate All Rapes

4. This rate tells us what we really need to know - how many rapes go totally unpunished or inadequately or inappropriately punished. • A precise rate of this kind is unattainable because of the • inherent subjectivity in the judgment of appropriateness of • punishment and the difficulty of establishing the true • prevalence of rape. • However, using data from victimisation surveys and rape crisis • centres and taking a sentence of imprisonment of any length • as a generally appropriate response, it is possible to arrive at • a serviceable estimate. • The simple, hugely disturbing message of the basic attrition • rate defined (conservatively) in this way is that probably • less than 1 in 40 cases of rape end up being appropriately punished.

5. According to Polk (Brit. J. Crim, 1985) attrition is very familiar across many types of crime. A majority of cases known to the police are lost (do not result in a custodial sentence) in the criminal justice process. End in custodial sentence Rape 7% Robbery 6% Assault 2% Burglary 1% Homicide 28% Some of these crimes also have high rates of under-reporting. What is similar? Inefficiencies in the system The burden of proof – evidential issues arising from due process What is different? A far greaterproportion of perpetrators are known in rape The role of victim credibility is central in rape – harder evidential issues The scope for prejudicial attitudes and actions in rape The significant degree of victim withdrawal from rape cases

6. Attrition rates in published studies commonly focus on reported or recorded offences and on convictions because these tend to be the only (relatively) reliable figures available. This is a topping and tailing that misses much of what is important:- e.g. the huge extent of under-reporting and the significant role of sentences in determining public and victim perceptions and expectations. However, it is often the only way to proceed and it is also essential to narrow the focus at least temporarily to do justice to the complexity of the causes of/reasons for attrition – effectively a diagnostic ( and sometimes an evaluative) process. For example, early studies especially in Britain examined and drew attention to the loss of cases between reporting and recording of offences – due to no-criming etc. These studies had a diagnostic role, pointing to problems in the system. They were useful in that they helped gain reforms that restricted police discretion and provided more supportive procedures for victims reporting sexual crime.

7. The identification of a perpetrator and the police’s ability to make • that person accessible to the legal process is an obvious • precondition for a successful prosecution. But decisions and actions by the following actors can be crucially influential. They can conclusively end a prosecution or lead to other types of attrition. • Victim • Police • Director of Public Prosecutions • Trial Judge • Jury • Appellate Court • The executive (Minister for Justice)

8. Police Director of Public Prosecutions Trial Judge Jury Appellate Court The executive (Minister for Justice) Potential Victims General Perceptions Victim

9. The victim is the main decision-maker when it comes to attrition [80% plus] • CJS factors - aware of pain, difficulties and risks • Incident factors - aware of drink/drugs issues • Social factors - privacy, loss of reputation • Psychological factors – self-blame, ‘getting on with life’ • Fear of the perpetrator • (Hanly et al 2009) • Balanced against: • wanting justice _ “the right thing to do” • social influence – others wanting justice • security concerns – protection from future assault for • self % others

10. The attrition process is complex not only because a host of actors with varying, carefully defined roles are involved, but also because decision-making occurs within a restrictive legal framework with specific rules and procedures. The chief purpose of this framework in the criminal trial is providing due process, that is ensuring as far as possible that the innocent are not found guilty and punished. Ensuring that the guilty are convicted and punished is an equal but in a sense a subsidiary aim. Loss of a case, where there is culpability, is a failure to impose appropriate punishment, whoever decides and for whatever reason. But the reasons can be very different. This can be disbelief or an educated calculation that the evidence is not strong enough to lead to a conviction, irrespective of views on the victim’s version of events. The DPP must attempt to both vindicate the victim’s right to justice and ensure due process for the accused. Paradoxically the DPP must sometimes bring about one form of attrition (decline to prosecute) in order to avoid another potentially far more damaging form of attrition (acquittal or collapse of a trial).

11. % Total % Received ReceivedLost • Police: No-criming Down-grading Insensitive, humiliating or demoralising treatment of victim Ineffective investigation • Director of Public Prosecutions: Decision not to prosecute Decisions facilitating lesser sentences • Trial Judge: Dismissal Management of trial Sentence • Jury: Acquittal Indecision • Appellate Court: Sentence • The executive (Minister for Justice): Sentence 30% 60% 12% 75% 3% 50% 1.5%

12. Irish annual statistics for rape reports, prosecutions and convictions

13. ATTRITION AT THE TRIAL STAGE 100% 442 Trials for Rape 2003-2008 After 13 Absconsions 3% 12% After 52 NolleProsequis 4% After 18 Hung Juries 22% After 97 Acquittals 13% After 58 lesser convictions 204 Rape convictions 46%

14. 177 Trials for Rape Hanly et al 100% After 4 Absconsions 2% 8% After 14 NolleProsequis 5% After 8 Hung Juries 29% After 52 Acquittals After 29 lesser convictions 16% 70 Rape convictions 40% 51 of these 70 convictions followed Guilty Pleas. Less than 25% of contested trials led to conviction for rape. Kelly et al followed up 100 reported Irish cases from 2004. Alleged perpetrator: Identified 79 Arrested 49 Interviewed 69 Charged 18 To Court 16 Convictions 8 Convictions for rape 6 [ 38%; 4 Guilty Pleas; 40% of contested trials]